Edward Fitzpatrick: Will Obama listen to voice of nation, Congress?

What happens if Congress says “no”?That question is front and center as President Obama prepares to deliver a prime-time address on Tuesday night, aiming to convince a skeptical public and a skeptical...

That question is front and center as President Obama prepares to deliver a prime-time address on Tuesday night, aiming to convince a skeptical public and a skeptical Congress that it makes sense to bomb Syria over the use of chemical weapons.

To an extent, the answer hinges on a legal analysis of whether Mr. Obama needed to seek congressional authorization in the first place.

The U.S. Constitution gives Congress the power to declare war but it also gives the president power as commander in chief, and the question of whether congressional authority is needed for the limited military action contemplated in Syria falls into a “gray area,” said Roger Williams University School of Law Prof. Jared A. Goldstein, who teaches constitutional law.

In 1999, former President Bill Clinton did not seek congressional authorization for military action in Kosovo, but that was undertaken as part of NATO. “Obama does not have NATO or the United Nations, so in that regard we are in uncharted waters,” said Roger Williams University law Prof. Peter S. Margulies, who teaches national security law. “But you do have a long-standing prohibition in international law on the use of chemical weapons. Even the Nazis didn’t use chemical weapons in combat.”

Goldstein said the trend is for presidents to take such military action without a congressional OK. “So the fact Obama asked is a good sign that he’s committed to letting the political process work itself out and letting Congress take its historical role in authorizing war and warlike activities,” he said.

Margulies said that while it’s not clear Mr. Obama needs it, securing congressional authority would allow the nation to “speak with one voice.”

But what if the voice of Congress says “no”? “The president could in theory go ahead without congressional authorization,” Margulies said. “But in practice I highly doubt he would. He has sort of bound himself to the mast.”

If Congress does say “no,” U.S. credibility would be undercut, Margulies said. “That would be a disaster. It would send a clear signal to countries like Iran that they’re free to develop their nuclear weapons program and have nothing to fear from us.”

But Goldstein said, “The argument that we need to bomb someone because our credibility is on the line is almost the same argument made in Vietnam. The U.S. has a long history of war-making, dropping bombs and ‘being tough’ all around the world.” And that won’t be forgotten if the U.S. proceeds with caution in an area as complex and volatile as the Middle East, he said.

The potential for escalation is real. In July, Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, outlined U.S. options in Syria, warning, “We must anticipate and be prepared for unanticipated consequences of our action.” He said, “Deeper involvement is hard to avoid.”

Yet war-weary Americans are wary of deeper involvement. On Monday, a USA Today/Pew Research Center poll found 63 percent now oppose U.S. air strikes against Syria. As he prepares for prime time, the president stands on a knife’s-edge summit, with downside no matter which way he looks. While there are consequences to action and inaction, Congress would be wise to tell him “no.”